Articles Posted inCriminal Strategy

Fake stash house robbery cases are an embarrassment to a civilized society.

Here’s what happens. An undercover ATF agent finds a guy and does some deals with him. He then tells the guy he knows of a stash house where there are a lot of drugs and guns. Probably money too. Maybe a unicorn. Whatever it takes to get the guy interested.

The guy gets some other guys involved. They get weapons and gear up for this robbery of someone they believe is a drug dealer.

One of the trickiest problems in a criminal trial, in federal court or any other court, is determining if the person accused of a crime should testify.

On one hand, the jurors instinctively want to hear what the person has to say. They’re instructed not to hold it against him if he doesn’t testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

And, of course, the person on trial may have something useful to say in his own defense.

There’s a story out of Connecticut that I find particularly troubling; a woman has entered a guilty plea to obstruction of justice after lying to federal agents in a health care fraud investigation. To my mind, obstruction of justice charges have one cause – failing to hire a lawyer when you need one.

Too many people think they can go it alone in a federal investigation and wait to hire a lawyer. This is a mistake. To be sure, there are drawbacks to hiring a lawyer – lawyers are expensive, they take time, they tell you things you may not want to hear. But they also can advise you how to act when you, or someone you know, is caught up in an investigation.

The woman in this story said she lied about whether a patient signed an admissions form. One may think that some folks are liars and some folks aren’t and that hiring a lawyer won’t make a difference. I disagree. A good lawyer can intelligently explain why lying is a remarkably bad strategy when you’re caught up in an investigation.

The Second Circuit has rebuffed the New York Times’ attempt to get access to the information learned from wire taps of the folks involved in the Emperor’s Club, the same organization that brought down Eliot Spitzer.

This should probably not be surprising, since the government has been pretty clear about what they’re doing with health care investigations. And, on the campaign trail, Obama was hardly secretive about wanting to prosecute executives.

In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.

This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.

I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.

At the risk of turning this into the Melendez-Diaz blog, I will note that there is a nice article in the Washington Post this morning about a Virginia court throwing out a DUI because of Melendez-Diaz.

Perhaps my favorite part of the article:

[A] phalanx of defense lawyers who watched the hearing left the courtroom quietly jubilant and congratulating colleague David Bernhard, who first tried to use the new Supreme Court ruling on the same morning it was issued. That caused Roush to crack, “You’re going to make me read Justice Scalia before lunch?”

The Court determined that, after Melendez-Diaz‘s very powerful language about how a Certificate of Nonexistence of Record (a “CNR”) is a testimonial statement which requires a person have a right to cross-examine the person offering the evidence, a conviction which was based on such a certificate must be dismissed.

The Supreme Court’s analysis conclusively shows that the CNR in this case, “a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it,” id., was inadmissible over objection without corresponding testimony by the . . . official who had performed the search.

Admittedly, I’m a little worked up about Melendez-Diaz. It’s a pretty exciting decision.

What’s worrisome, of course, is that the Supreme Court has the power to change it. Melendez-Diaz was a 5-4 decision, and Justice Souter was in the majority. Which means that if a Justice Sotomayor thinks that it was wrongly decided, it could be gone tomorrow.

There is reason to think Justice Sotomayor will not be great for criminal defendants and their lawyers in general. As a biographical matter, she’s a former prosecutor, and former prosecutors tend to look at the world a little differently than criminal defense lawyers do.